TAYLOR v. EVANS

United States District Court, Southern District of New York

October 25, 1999

FAYE TAYLOR, INDIVIDUALLY AND ON BEHALF OF TAMIKA TAYLOR, AN INFANT, AND ARTNELL TAYLOR, PLAINTIFFSv.KENNETH EVANS, INDIVIDUALLY AND AS CASEWORKER, CHILD WELFARE ADMINISTRATION, RAMONA PINCKNEY, INDIVIDUALLY AND AS CASEWORKER, CHILD WELFARE ADMINISTRATION, BARBARA SABOL, INDIVIDUALLY AND AS COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, ROBERT LITTLE, INDIVIDUALLY AND AS DEPUTY COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, AND THE CITY OF NEW YORK, DEFENDANTS.

With discovery complete, defendants move for summary judgment
pursuant to Rule 56, Fed.R.Civ.P., on the ground that they did
not violate any of plaintiffs' constitutional rights. In the
alternative, defendants move for summary judgment in their
individual capacities on the basis of immunity. For the reasons
that follow, defendants' motion is granted in its entirety.

FACTS

This lawsuit arises from the placement of an infant named Gary
Maund ("Gary") in Taylor's home and the events following Gary's
removal in July 1990. Gary was born in April 1989 with severe and
multiple handicaps, including arthrogryposis multiplex congenita,
HIV, Down's syndrome, asthma, talipses equinovarus, rhizomelic
short-limbed dwarfism, otitis, dysmorphic features, polycythemia,
drug withdrawal, and inability to speak. Gary immediately was
placed in the custody of the Department of Social Services, where
he remained until his death in 1993. As a result of his multiple
handicaps, Gary required regular treatment and observation from
physicians throughout his tragically short life.

In April 1990, Foundling Hospital placed Gary in Taylor's
foster care. On July 26, 1990, Foundling Hospital, believing that
Gary's health was too complicated for a foster parent to handle
alone, removed Gary from Taylor's home and returned him to
Incarnation Children's Center, where he had resided prior to his
placement with Taylor.*fn2 Total body x-rays taken on the
following day indicated that Gary had sustained multiple
fractures that were in various stages of healing. Dr. Sara
Abramson, a pediatric radiologist who examined the x-rays,
reported that the fractures were indicative of child abuse.
Foundling Hospital proceeded to file a "Report of Suspected Child
Abuse or Maltreatment" in the New York Central Registry pursuant
to New York Social Services Law § 413.

The report prompted the CWA's concern that Taylor's two natural
children, Tamika and Artnell, also might be at risk in Taylor's
custody. Tamika and Artnell had resided with their mother since
their births on June 27, 1987 and May 19, 1976 respectively. On
July 28, 1990, the CWA assigned defendant Evans, a CWA
caseworker, to investigate whether Taylor's children were at risk
of harm.

Evans repaired first to the Incarnation Children's Center,
where he spoke with a nurse about Gary's condition and spent an
hour with Gary. In his deposition, Evans stated that he observed
that Gary had swelling in both arms, lacerations on his head and
throat area, scratches and abrasions on his back and legs, a
bruise on one shoulder, a mark on his groin, and what appeared to
be a fingernail scratch on his cheek. Evans Dep. at 111-12. By
contrast, social worker Dana Carney testified in Family Court
that Gary "appeared normal in every way," without any "fresh
marks" when he returned to the Incarnation Children's Center.
Plaintiffs' Exh. P at 29.

Plaintiffs' current action stems from their belief that
"defendants attempted to cover up their own misdeeds by blaming
the foster mother for [Gary's] injuries." Plaintiffs' Br. at 1.
Taylor alleges that Foundling Hospital failed to properly train
her to care for Gary given his special needs. According to
Taylor, the only training she received took place on the day that
Gary was placed in her home.

Specifically, plaintiffs contend that it was precisely the type
of physical therapy that Taylor had been instructed to give by
Foundling Hospital, Incarnation Children's Center, and/or Harlem
Hospital that led to Gary's injuries. From the age of eight
months, Gary received daily physical therapy in the form of
manipulation of his arms and legs. The purpose of the therapy was
to counteract the effects of arthrogryposis multiplex congenita.
While Gary lived in Taylor's home, Taylor took Gary to physical
therapy sessions at Harlem Hospital first once and then twice a
week. Taylor also was instructed that Gary should receive therapy
at home twice a day, and both she and her son Artnell performed
this therapy. In her deposition, Taylor indicated that she asked
the agency for help with Gary's physical therapy, but was not
given any assistance. Taylor Dep. at 139. Taylor also stated that
she was upset by the therapy that Harlem Hospital was performing
on Gary and that she voiced this concern to the health
coordinator, to Dr. Stephen Nicholas, and to Gary's social
worker, Dana Carney. Id. at 140. However, according to Taylor,
the therapist at Harlem Hospital directed her to continue with
the therapy and not to "spoil" Gary. Id. at 100.

Taylor now suggests that the fractures revealed by the x-rays
resulted directly from the therapy. According to the Family Court
testimony of Dr. Kwame Ansane-Yeboa, arthrogryposis multiplex
congenita makes bones more susceptible to fracture, and as a
result, physical therapy prescribed for a child with
arthrogryposis multiplex congenita must consist of "a careful set
of exercises." Plaintiffs' Exh. Z at 14, 17. Dr. Ansane-Yeboa
indicated that he thought the injuries reflected in Gary's x-rays
were most likely caused by vigorous handling in physical therapy.
Id. at 28-29. Taylor also suggests that any facial injuries
that Gary sustained resulted from problems with the nebulizer
mask that she had brought to the attention of Gary's social
worker. Plaintiffs' Br. at 25; Plaintiffs' Exh. B at 14.

STANDARD OF REVIEW

The principles governing the grant or denial of summary
judgment under Fed. R.Civ.P. 56 are well established. "[S]ummary
judgment is appropriate where there exists no genuine issue of
material fact and, based on the undisputed facts, the moving
party is entitled to judgment as a matter of law." D'Amico v.
City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied,
524 U.S. 911, 118 S.Ct. 2075, 141 L.Ed.2d 151 (1998). In
addressing a motion for summary judgment, "[t]he court must view
the evidence in the light most favorable to the party against
whom summary judgment is sought and must draw all reasonable
inferences in his favor." L.B. Foster Co. v. America Piles,
Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The party seeking
summary judgment bears the initial burden of showing that no
genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986).

Moreover, while the party resisting summary judgment must show
a dispute of fact, it also must be a material fact in light of
the substantive law. "Only disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). However, "[t]he mere existence of a scintilla of evidence
in support of the [non-movant's] position will be insufficient"
to defeat a properly supported motion for summary judgment. Id.
at 252, 106 S.Ct. 2505. Instead, the non-movant must offer
"concrete evidence from which a reasonable juror could return a
verdict in his favor." Id. at 256, 106 S.Ct. 2505. Summary
judgment should only be granted if no rational factfinder could
find in favor of the non-moving party. Heilweil v. Mount Sinai
Hospital, 32 F.3d 718, 721 (2d Cir. 1994).

Rule 56(e) further provides that "[s]upporting and opposing
affidavits shall be made on personal knowledge . . . and shall
show affirmatively that the affiant is competent to testify to
the matters stated therein." Accordingly, it is insufficient for
a party opposing summary judgment "merely to assert a conclusion
without supplying supporting arguments or facts." BellSouth
Telecommunications, Inc. v. W.R. Grace & Co., 77 F.3d 603, 615
(2d Cir. 1996) (internal quotations omitted).

DISCUSSION

I. § 1983 Claims

To state a cause of action under § 1983, a plaintiff must
allege that the defendant has deprived him of a federal right
while acting under color of state law. See Gomez v. Toledo,
446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Plaintiffs
allege that defendants violated their rights under the Fourth,
Fifth and Fourteenth Amendments.*fn3 I address each of
plaintiffs' claims in turn; first with respect to the caseworkers
in their individual capacities and then as to the City of New
York and the other defendants in their official capacities.*fn4

Plaintiffs first argue that in removing Tamika and Artnell from
Taylor's custody, defendants deprived both Taylor and her
children of due process of law. It is undoubtedly the case that
under ordinary circumstances, Taylor, as a parent, has a liberty
interest in the care and custody of her children, sometimes
referred to as the right to "family integrity" or "the right of
the family to remain together without the coercive interference
of the awesome power of the state." Joyner v. Dumpson,
712 F.2d 770, 777-78 (2d Cir. 1983) (quoting Duchesne v. Sugarman,
566 F.2d 817, 825 (2d Cir. 1977)). Although some courts have
questioned whether Tamika and Artnell, as children, should have a
parallel liberty interest in remaining in the custody of their
mother as opposed to that of the state, see, e.g., Jordan v.
Jackson, 15 F.3d 333, 343 n. 10 (4th Cir. 1994) (surveying
decisions on this issue); Donald v. Polk County, 836 F.2d 376,
384 (7th Cir. 1988) (suggesting without deciding that a child is
not deprived of a liberty interest when custody is transferred
from parents to the state), the Second Circuit's 1977 opinion in
Duchesne, 566 F.2d at 825, suggests that they do. There, the
court observed:

[The] right to the preservation of family integrity
encompasses the reciprocal rights of both parent and
children. It is the interest of the parent in the
companionship, care, custody and management of his or
her children, and of the children in not being
dislocated from the emotional attachments that derive
from the intimacy of daily association, with the
parent.

This mutual interest in an interdependent
relationship has received consistent support in the
cases of the Supreme Court.

(internal quotations and footnote omitted); see also id. at 833
("Ms. Perez and her two children were deprived of their right
to live together as a family without due process of law.")
(emphasis added).

However, substantive due process analysis is inappropriate
where plaintiffs' claim is covered by the Fourth Amendment.
Tenenbaum v. Williams, 193 F.3d 581, 599-600 (2d Cir. 1999)
(quoting County of Sacramento v. Lewis, 523 U.S. 833, 853, 118
S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). That is so because "[w]here
a particular Amendment provides an explicit source of
constitutional protection against a particular source of
government behavior, that Amendment, not the more generalized
notion of substantive due process, must be the guide for
analyzing these claims." Albright v. Oliver, 510 U.S. 266, 273,
114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (internal quotations
omitted). As discussed infra, plaintiffs' claims for Tamika's
examination and the children's removal constitute a search and
seizure, and are to be analyzed under the Fourth Amendment.

Finally, plaintiffs argue that the removal of Tamika and
Artnell pursuant to a court order on August 3, 1990 violated
their due process rights. Plaintiffs allege that, in making that
order, the court relied upon false information provided by
defendant Ramona Pinckney. In her report, Pinckney stated that
Taylor failed to cooperate with the CWA's investigation by
refusing to authorize x-rays of the children. Plaintiffs contend
that this statement is inconsistent with a case narrative record
indicating that a physician from St. Luke's Hospital concluded
that x-rays of the children were not necessary. This is a dispute
of fact; but it is not a dispute of a material fact. The
children's removal was based upon evidence that one of the
children in the household had been injured in a manner suggesting
abuse. The Family Court judge held that the nature and severity
of Gary's injuries alone provided a sufficient basis for the
removal of Artnell and Tamika from Taylor's home.

In any event, the individual defendants in this case enjoy
qualified immunity, and under that standard, the claims brought
against them must be dismissed.

enjoy qualified immunity from liability for damages
if at the time of the pertinent episode it was not
clear that the actions they took violated established
constitutional rights, or if it was objectively
reasonable for them to believe that their actions did
not violate such rights as were then clearly
established.

Though a decision to remove a child from parental
custody implicates the constitutional rights of the
parents, it obliges protective services caseworkers
to choose between difficult alternatives in the
context of suspected child abuse. If they err in
interrupting parental custody, they may be accused of
infringing the parents' constitutional rights. If
they err in not removing the child, they risk injury
to the child and may be accused of infringing the
child's rights. It is precisely the function of
qualified immunity to protect state officials in
choosing between such alternatives, provided that
there is an objectively reasonable basis for their
decision, whichever way they make it. . . . The issue
is not whether it was absolutely essential to remove
the child. . . . The issue is whether it was
objectively reasonable for the defendants to make the
decision that they made, and no rational jury could
find that it was not.

Although it is now clear that the removal of a child indeed
constitutes a seizure under the Fourth Amendment, it is unclear
under what circumstances a removal would violate the Fourth
Amendment. In Tenenbaum, the Second Circuit declined to hold
"categorically . . . that the removal of a child of whom abuse is
suspected is not a `special needs' situation' . . . in which the
law of warrant and probable cause established in the criminal
setting does not work effectively in the child removal or child
examination context." Id. at 604.

In the present case, even assuming the necessity of a probable
cause requirement, that standard was met; accordingly,
plaintiffs' Fourth Amendment rights were not violated by the
children's removal.*fn8 It was Foundling Hospital, a neutral
third party, which initially filed the report of suspected child
abuse as required under New York law, thereby prompting CWA's
investigation. See Defendants' Exhs. A-C. Dr. Abramson, a
pediatric radiologist who examined Gary's x-rays, reported that
the fractures were indicative of child abuse. Gary's attending
doctor confirmed that the evidence was consistent with physical
abuse. See Nicholas Dep. at 98. Other district courts in the
Second Circuit have held that a report "filed by an identified,
disinterested person with cause to know of abuse and a legal
obligation to report it, confirmed by the treating resident
physician, constitutes objectively reasonable evidence of an
emergency to child protective personnel." Dietz, 932 F. Supp. at
445; see also Yuan v. Rivera, 48 F. Supp.2d 335, 345 (S.D.N Y
1999) (same).

From Tenenbaum and Schwimmer, it is clear that a strip
search of a child implicates the child's Fourth Amendment
interests, at least when the search serves an investigative
function. Citing to New Jersey v. T.L.O., 469 U.S. 325, 105
S.Ct. 733, 83 L.Ed.2d 720 (1985), the Second Circuit in
Schwimmer noted that the applicable standard was one of
reasonableness. 164 F.3d 619, 1998 WL 708818, at *3. In T.L.O.,
the Supreme Court noted:

Although the underlying command of the Fourth
Amendment is always that searches and seizures be
reasonable, what is reasonable depends on the context
within which a search takes place. The determination
of the standard of reasonableness governing any
specific class of searches requires balancing the
need to search against the invasion which the search
entails. On one side of the balance are arrayed the
individual's legitimate expectations of privacy and
personal security; on the other, the government's
need for effective methods to deal with breaches of
public order.

469 U.S. at 337, 105 S.Ct. 733 (internal quotations omitted).
Noting that "neither a warrant nor probable cause, nor, indeed,
any measure of individualized suspicion, is an indispensable
component of reasonableness in every circumstance," the Supreme
Court has held that "where a Fourth Amendment intrusion serves
special governmental needs, beyond the normal need for law
enforcement, it is necessary to balance the individual's privacy
expectations against the Government's interests to determine
whether it is impractical to require a warrant or some level of
individualized
suspicion in the particular context." National Treasury
Employees Union v. Von Raab, 489 U.S. 656, 665-66, 109 S.Ct.
1384, 103 L.Ed.2d 685 (1989) (discussing administrative searches)
(cited in Franz v. Lytle, 997 F.2d 784, 788 (10th Cir. 1993)).
But see Steven F. Shatz et al., The Strip Search of Children
and the Fourth Amendment, 26 U.S.F.L.Rev. 1, 35 (Fall 1991)
(arguing that there should be no administrative exception to
traditional Fourth Amendment analysis for child abuse
investigations).

Several other circuits have considered the Fourth Amendment
implications of strip searches in child abuse investigations. In
Darryl H. v. Coler, 801 F.2d 893, 899-903 (7th Cir. 1986), the
Seventh Circuit considered whether a district court had abused
its discretion in refusing to grant a preliminary injunction
prohibiting the Illinois Department of Children and Family
Services from using a procedure permitting caseworkers to
physically examine children for evidence of abuse under certain
circumstances. The Seventh Circuit concluded that in the context
of a department procedure aimed primarily at protecting children
rather than at criminally prosecuting parents, "we cannot say
that the Constitution requires that a visual inspection of the
body of a child who may have been the victim of child abuse can
only be undertaken when the standards of probable cause or a
warrant are met." Id. at 902. See also Wildauer v. Frederick
County, 993 F.2d 369, 373 (4th Cir. 1993) (same).

The other circuits considering strip searches as part of child
abuse investigations have done so in cases where the police were
involved in the strip search. In Good v. Dauphin County Social
Servs., 891 F.2d 1087 (3d Cir. 1989), the Third Circuit denied
qualified immunity to a police officer and a social worker who
forcibly entered an apartment to investigate an anonymous tip
received twenty hours earlier that the plaintiff's child may have
been the victim of abuse. Upon entering, the two defendants
proceeded to strip search the seven year old child. The Third
Circuit held that "[t]he decided case law [in April 1987] made it
clear that the state may not, consistent with the prohibition of
unreasonable searches and seizures found in the Fourth and
Fourteenth Amendments, conduct a search of a home or strip search
of a person's body in the absence of consent, a valid search
warrant, or exigent circumstances." Id. at 1092.*fn10 The
court rejected defendants' argument that "they were entitled to
assume until told otherwise by the courts that child abuse cases
would not be controlled by the well established legal principles
developed in the context of residential intrusions motivated by
less pressing concerns." Id. at 1094. In distinguishing Darryl
H., the Third Circuit noted that "the propriety of the strip
search cannot be isolated from the context in which it took
place" and that unlike Darryl H., the defendants in Good had
forcibly entered the home to conduct an investigative search and
had not acted pursuant to a procedure provided to them by their
superiors. Id. at 1096 & n. 6.

In Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993), the Tenth
Circuit denied qualified immunity to a defendant police officer
who, without a warrant, photographed and physically examined a
two year old child's genitals in the course of a child abuse
investigation. The court noted that it had never decided "whether
social workers are relieved of the probable cause or warrant
requirement when investigating cases of child abuse or neglect"
based on the Supreme Court's administrative search cases. Id.
at 788 and at 788 n. 8. The court concluded, however, that it
need not decide that question, because

In Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), the
Ninth Circuit also distinguished Darryl H. The court noted that
in Darryl H., "the strip search was not done during an
unconstitutional entry into the home, and the information
supporting a strip search was much stronger . . . than in the
case at bar," in which the social worker, acting on a "weak tip,"
had "little reason to believe" that the child had been abused.
Id. at 818-819, 820.

On the facts of this case, I think it clear that the defendants
are entitled to summary judgment on the basis of qualified
immunity. First, in this case, there was no police involvement or
coerced entry. The court in Calabretta noted the significance
of the fact that, as in Good but as distinguished from Darryl
H., the search conducted by the police and accompanying social
worker could not "be separated from the context in which it took
place, the coerced entry into the home." 189 F.3d at 819. See
Good, 891 F.2d 1087, 1096 ("the strip search in this case came
in the context of a forced entry into a residence in the middle
of the night. On these facts, the degree of intrusion of privacy
was not at all comparable to the far more limited intrusion in
Coler"); Franz, 997 F.2d at 791 ("defendant's conduct cannot
otherwise be transformed into that of a social worker given the
uncontroverted facts he was in uniform and carrying a gun at all
times"). In the instant case, Taylor willingly admitted a social
worker (unaccompanied by law enforcement) into the family
home.*fn11 Significantly, the search was done for protective
purposes (the province of social workers) and not for
investigative purposes (the function of law enforcement), a
distinction made in all of the cases discussed supra.

Second, in this case, the search did not involve touching,
photography, or sustained examination of sexual body parts. In
Tenenbaum v. Williams, 862 F. Supp. 962, in which the court held
that a nonemergency, warrantless body cavity search of a
suspected child abuse victim violated the Fourth Amendment, it
was careful to distinguish visual inspections from invasive
inspections of sexual organs for investigative (as opposed to
medical or protective) purposes. Id. at 978 ("Requiring a
warrant for a mere visual inspection (following an emergency
removal based on probable cause) — particularly of asexual parts
of the anatomy — could frustrate child welfare workers in their
efforts to uncover child abuse by converting a quick inspection
into a time-consuming procedure")aff'd in relevant part,
193 F.3d 581. See also Franz, 997 F.2d at 791.

Plaintiffs next assert claims for malicious prosecution both as
to the family court proceedings and as to the criminal
proceedings. The Second Circuit has stated that:

[t]hough section 1983 provides the federal claim, we
borrow the elements of the underlying malicious
prosecution tort from state law. In New York, a
plaintiff alleging malicious prosecution must show:
(1) the defendant commenced a criminal proceeding
against him; (2) the proceeding ended in the
plaintiff's favor; (3) the defendant did not have
probable cause to believe the plaintiff was guilty of
the crime charged; and (4) the defendant acted with
actual malice.
Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994).

Contrary to defendants' assertion that "plaintiff cannot
establish malicious prosecution because a Family Court proceeding
is not a criminal proceeding," Br. at 17, it is not clear that
such a claim is unavailable for child abuse proceedings. In
Easton v. Sundram, 947 F.2d 1011, 1018 (2d Cir. 1991), the
Second Circuit characterized this issue as one of first
impression and stated, "we do not hold that civil malicious
prosecution can never give rise to a cause of action under §
1983, although we suspect it normally will not" (collecting cases
and stating that "[t]o our knowledge, no other court to have
considered the question has held that a cause of action pursuant
to section 1983 for malicious civil prosecution exists," id. at
1017). The Second Circuit has thus left open the rather narrow
possibility that a civil malicious prosecution may conceivably
rise to constitutional dimensions. Indeed, Magistrate Judge
Francis of this District did allow for that very possibility in
Yuan v. Rivera, 48 F. Supp.2d at 349, holding that "the
groundless initiation of a case in Family Court may give rise to
a claim for malicious prosecution" under § 1983.

However, in the case at bar, as set forth supra, plaintiffs
were not "subjected to `conscience-shocking' behavior that would
transform [any] state cause of action into a constitutional one"
nor were they "subjected to a misuse of the legal process so
egregious as to work a deprivation of a constitutional
dimension." Easton, 947 F.2d at 1018. See also Zanghi v.
Incorporated Village, 752 F.2d 42, 45 (2d Cir. 1985) ("It is
abundantly clear that a finding of probable cause will defeat
state tort claims for . . . malicious prosecution"). Accordingly,
their claims for malicious prosecution in the Family Court
proceedings must be dismissed.

Plaintiffs' claims for malicious prosecution with regard to the
criminal proceedings also must be dismissed. As stated above,
plaintiffs must demonstrate, among other things, a favorable
termination on the merits. Taylor was convicted by a jury of two
counts of assault in the second degree and one count of
endangering a child. That verdict was reversed on the basis of
the trial court's error in responding to jury notes without first
showing them to Taylor's counsel.

Recognizing that in certain instances, "criminal proceedings
are terminated in a manner that does not establish either guilt
or innocence," the Second Circuit has held that "[i]n the absence
of a decision on the merits, the plaintiff must show that the
final disposition is indicative of innocence." Russell v.
Smith, 68 F.3d 33, 36 (2d Cir. 1995). Plaintiffs have not shown
that the ultimate disposition of the criminal case against Taylor
was "indicative of innocence," particularly given the Appellate
Division's statement that "[t]he evidence was legally sufficient
to establish [Taylor's] guilt, and the verdict was not against
the weight of the evidence." People v. Taylor, 192 A.D.2d 35,
597 N.Y.S.2d 347, 348.

Further, plaintiffs have not shown that defendants had anything
whatever to do with the District Attorney's decision to prosecute
Taylor. Assistant D.A. Riccardi testified that none of the
defendants encouraged her to press charges and Detective Flaherty
testified that his decision to arrest Taylor was based upon
information derived from his interview with Dr. Nicholas (who is
no longer a defendant in this action), discussions with the
D.A.'s office, and an interview with Taylor. Accordingly, the
first prong of the malicious prosecution test also has not been
satisfied. Plaintiffs' malicious prosecution claims are
dismissed.

B. Claims Brought Against the City of New York and the Other
Defendants in Their Official Capacities

To prevail against municipal defendants, a section
1983 plaintiff must prove the existence of a
municipal policy or custom that caused his injuries
and, second, plaintiff must establish a causal
connection . . . between the policy and the
deprivation of his constitutional rights. The
threshold question is whether there has been a
deprivation of a constitutional right.

[C]laims brought under section 1983 require specific
allegations at the pleading stage and thus represent
a departure from the liberal pleading requirements
set forth in Rule 8(a). Accordingly, this Court has
repeatedly held that the allegation of one incident
is insufficient to maintain a claim against a
municipality.

Id. at 172 (internal citations omitted). See also City of
Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d
412; Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct.
2427, 85 L.Ed.2d 791 (1985) (plurality opinion); Monell v.
Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978). The inference that the violation of a
plaintiff's constitutional rights resulted from a municipal
custom or policy such a policy existed may arise from
"circumstantial proof, such as evidence that the municipality so
failed to train its employees as to display a deliberate
indifference to the constitutional rights of those within its
jurisdiction." Ricciuti v. N.Y.C. Transit Authority,
941 F.2d 119, 123 (2d Cir. 1991).

As shown above, plaintiffs have failed to establish any legally
cognizable federal claims against any of the individual
defendants or municipal employees. Accordingly, no claims can lie
against the municipal defendant. See, e.g., City of Los Angeles
v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806
(1986). Plaintiffs' Monell claims are dismissed.

II. State Law Claims

Insofar as plaintiffs have failed to state a federal claim,
this Court will not exercise pendent jurisdiction over
plaintiffs' state law claims. See Dunton v. County of Suffolk,
729 F.2d 903, 910-11 (2d Cir. 1984) (pendent jurisdiction proper
only where federal claims are substantial).

III. Conclusion

For the foregoing reasons, plaintiffs' claims are dismissed in
their entirety against all of the defendants.

It is SO ORDERED.

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